i will have to quit in a couple of minutes. minute.top in two more you had written about progressive and conservative constitutionalism. please explain those terms and which of those terms -- describes your own views. i confess it is not entirely clear what those content those terms have. it is fair to say that in academic circles they give some our divergences on the supreme court and the split

decisions that often come out. that is a crude split. justices do not line up in any particular way. labels, ict on those don't think they're particularly helpful in articulating anyone who is a judge, what their philosophy would be. it is not the goal of a judge to come into it with a preconceived vision. you are supposed to decide cases. that is how i would approach it. >> you have written that you were concerned with decisions that only looked to prior supreme court opinions, statutes, regulations. you said that this kind of constitutional decision-making without looking to lot refuse, literature, treaties can be

called cranach and technical -- cramped and technical. what role would lot reviews -- lot refuse having your judicial -- lot reviews -- law reviews having your judicial? >> i want to clarify on that comment. that writing with the blog post. it was making an early observation about opinions from a justice. i noted in that same post that there was also much to be said law approach. the

certainly, as justices sometimes do, treatises can be relevant in the fact that they organize therial but they are not sources of authority. the authoritative sources of are the text of the constitution itself and the materials that give insight into what the meaning of those are intended to be when they were in acted-- and acted -- and -- enacted. i will submit questions for answer in writing. >> thank you very much. i want to start by picking up were senator grassley left off. you would agree then that the only authoritative legal statements that you look to us those that arebe

actually produced by watch of the three branches of government? >> i agree with that. >> and yet that is not what you are saying in that blog post. is any sense of the broad early coculture that this is authoritative legal statements. you are comparing and contrasting those two. i and a standard he were raising a question and he made some arguments for both sides. it looks like you made a lot more arguments on one side than the other. you did indicate that you have your suspicions regarding this kind of practice. -- do you approach this sort of thing with suspicion? >> far from it. i supplied the published opinions that i signed when i was at the office of legal back --and there is a

best practices memorandum. clear that the traditional sources of meaning are what one looks to when one is dealing with a statute and the traditional schools of construction of that text -- it is the text and the purpose is that underlie it. the opinions that i signed when i was in that office, those were the full sources that i relied on for authoritative legal confirmation. would ifs the take you you would confirm? >> absolutely. you wrote as follows, there is precious little in the constitution's text that compels the particular conservative allocation of national and local

powers favored by the rehnquist kurt. tell us what you mean by that. it wasot just a feature, the single most important feature of the constitution and chew the generations that adopted and ratified it was that we would have a national government that would be few and defined. this seems to be suggesting the opposite. >> the reason that motivated me to write that article was that a number of professors were taking the position that the so-called federal were inconsistent with the constitutional structure and i do not share that view and part of the reason i was writing at that time was to make plain that it did not seem to me that one could simply dismiss the morrison and the lopez argument that there are limits to the scope of national power. in my writings, i have tried to make sense of what those limits

are and the importance of them. >> you did say there is precious little in the constitution that compels a particular conservative allocation of power between federal government and state and local government. >> i did write that. the precise allocation -- part of the point i have made in that writing that is in another writing was that the shape of the limits that the courts have imposed have changed at times. the national league of cities approach is different than the approach that was set forward in morrison and lopez and i don't think you could read the constitutional arguing in those academic writings -- i don't think you could read the constitution to make it clear that national cities was wrong versus lopez was wrong. that is the point i was trying to make about the shape of the doctrine.

my personal beliefs would not be the guide for me as a judge. mobley said that federalism is a critical component of our constitutional structure and that in the judge. that is not consistent with the statement we read, but let's move on. you conclude with a statement that federalism is what we make of it. rehnquist has been making the most of it for more than a decade. it is time for progressives to do the same. would you say federalism is what we make of it, is federalism that which is wearing black robes happen to think that about to be? is it means by which we achieve a particular outcome? >> in that same peace amid the point of saying that it has to have integrity and it cannot be

just what is a good policy outcome. judges should enforce federalism is manifested in the constitution and in the precedents that the courts have developed. that is what i would do. >> are we going to have time for another round? we may have to come back this evening, but yes if you want one. >> cut i have two more minutes> ? >> go right ahead. >> we have a very benevolent chairman. that there will be a recall petition on the in vermont. [laughter] there was another document year in which you have written

that it has long been a precept of the progressive view that the constitution is not frozen and even recent conservative judicial nominees seem hesitant to challenge that notion. the deficiencies of a pure original is some are now two well-known. agree that the whole point of having a constitution is having some law that is frozen in some meaningful respects into to a significant degree taken off the table, rendered immune from changing public opinion, separated a couple of degrees from changing public opinion and from the way the voters vote? isn't that the whole point? >> but do agree with that.

that is particularly particular farce which is a written constitution. saying thatre textualism and original in some -- that isism would've a cramped, overly inflexible sort of approach. >> if i could elaborate on the debit. bit. the text of the constitution compels an answer. not clearly does compel because the framers seem theded on the issue, precise technology they were talking about is so different than the technology that has developed -- the obligation of a judge is to use as the foundation point of the analysis

what evidence there is of what was the purpose and intention of the framers. there are circumstances in which the court itself has made clear in which the practice of the branches over time with respect to an open issue can't be determined of legal decision- making. that is a point that has been made in the war powers context many times. does not mean that the original intentions don't matter. it means that when there is a general provision it is hard to know looking solely to those purposes -- they can be as hard to figure out as the dreams of joseph. we have no choice but to see how the branches have operated over time. that is a particular aspect of our constitutional jurisprudence. the guide to when that mode of analysis as opposed to our originalist analysis. >> thank you.

and i think the benevolent chairman. >> [indiscernible] >> thank you, mr. benevolent chairman. thank you for being here. you and i have known each other a long time. we went to law school together. we have always gotten along well. is now,know then and that you have always been a man of the left. you have emphatically and effectively advocated very liberal positions both as a policy matter and a legal matter. i respect that consistency. i would be less than candid that i did not confess that i have concerns that let life of advocacy is not consistent with the role of a lifetime federal judicial appointment and so i would like to spend some time discussing that and i would like to start with a general

question. do you embrace the notion of a living constitution? lee, i said to senator understand the written constitution to be that the written constitution cannot be changed by a judge and in that sense they are frozen. to the extent that the original intentions are knowable in certain contexts or cannot be resolved clearly, the court and the precedents of the court make clear that some instances it is appropriate to look to the practices of the branches to give shape and meaning to them. is that a yes or no on a living constitution ? >> i think it is a no and the way i think you are asking. >> you have also written in defense of what you

characterized [indiscernible] not from the perspective of an academic but from the perspective of how courts should enforce it. you have written in favor of the progressive potential of a significant wielder of power, to courts, and he went on embrace the notion that the conscientiously arrive at progressive constitutional outcomes. i would like to ask you if those are still your views and if you think it is appropriate for courts to conscientiously arrive at progressive constitutional outcomes. >> if the idea that the task of a judge is to come to that

outcome because it is a progressive outcome, i disagree with that position. reachedutcome that is -- any outcome that is reached should not be on the progressive impulses of a judge. the only position that can be determined as a legal position. i would point to a couple of things which is the quality and content of the opinions that i wrote when i was interested in oning a legal the advisor sensitive matters and i was gratified by the letters in support of my nomination and by people who i think quite clearly a livinge idea of constitution, who know me from a variety of circumstances and believe that the way i would conduct myself as a judge is in accord with what i'm saying today. i would note that one

criticism that has been leveled at you is that you are highly whencal of executive power it was administered by a republican -- george w. bush -- and then very defensive of executive power when it was exercised by democratic president, barack obama. there isested that less than consistency or impartiality that we would hope to see in a federal appellate judge. are there instances in which federal -- president obama has exceeded his authority? >> i don't feel i am in a thation to comment on beyond the circumstances in which i gave advice about the particular questions that were presented to me. >> let me help you with that. setting aside your time at a , when george w.

bush exceeded legal power, i spoke out loudly against that -- have you publicly criticized president obama in your capacity as an academic forever acceding executive power? have not written about executive power since returning to academia if i recall. can i just answer the thrust of the question? there was a lot of criticism the priorinst administration by academics. the particular criticism that i anded was one in particular it concerned the authority of the president as commander-in- chief to act in the conduct of war unrestricted by statute. that was the subject of a constitutional analysis.

that idemic writing devoted myself to figuring out what the answer to the question once. -- was. i try to be tailored though i felt strongly about the issue. ask one final ofstion, what is your view the critical legal studies movement in the legal academy? i haven't thought about the critical legal studies movement and a longtime. movement that by the time you and i were in law was dead is probably an unattractive word in the eyes of the people who were part of it but i have no view about it. >> thank you. >> i have two questions. [indiscernible] recordnt to put into the

that i have a lot of letters in support of the nomination. are some from former reagan administration associate general -- former george w. bush administration head of the legal note that will professor goldsmith writes that david is one of the smartest lawyers i know. he is a great lawyer. to see nonobvious connections between league opens and understand the second and third order effects of legal decision- making. these are very important qualities in successful judging and without objection we will put those letters and the others in the record senator grassley. on may 16, 2003, you and

other law professors wrote regarding the use of the filibuster which i will make part of the record. you stated that the filibuster reflects the senate's long- standing respect for minority reviews -- views. that with regard to nominations to an independent branch of government such as a judiciary the filibuster encourages the president to find common ground with the senate on nominating individuals. do you still agree with your assessment and no loader -- in that letter? >> i do. >> i guess we better leave it there. [laughter]

i am going to leave it into something. i want to give background for a question. in 2011, the d.c. district court ordered the justice department to release e-mails regarding then solicitor general involvement with obamacare litigation. kagan wrote you an e- mail when you are asked think assistant attorney general for the office of legal counsel. in that e-mail, she asked whether you had seen former judge michael mcdonald's piece in the wall street journal. she was referring to an op-ed allh judgment, -- judgment, -- the ideaonnell

was to circumvent the vote on the claim. in response to that e-mail, you replied, yes, he is getting this going. presumably that was in caps. what did you mean by that? i want to be hesitant in answering you for the only reason that i am not sure that that e-mail has been publicly disclosed and i would hate to say anything that might waive a privilege that i am not in a position to waive. >> it is public. one possibility i could try to give you an answer in a written follow-up circuit city e-mail. i appreciate that. on the same line -- did you provide political guidance or

legal counsel either formally or informally to anyone in the pending obamacare legislation? i am not asking for you to disclose the pacific council advice or opinions you may have aboutd, but i'm asking the issue you may have addressed. does you provide advice on the following topics -- the constitutionality of obamacare, an assessment or judgment regarding possible litigation based on any proposed or actual procedure event that occurred in either chamber concerning obamacare? >> i really think i can say this. tasks of theinary office of legal counsel to review legislation that is pending in congress. as to the substance of any information or device that i gave was serving as a lawyer, i

don't feel that i am at liberty to say that without waiving a privilege that is not mine to eighth. -- wave. >> thank you. >> on the question of the affordable care act, the supreme court has ruled on it, has it not? >> it has. >> you are bound by that ruling no matter how you felt one way or the other. >> absolutely. >> thank you very much. we stand recessed. >> thank you. >> thank you. >> [indiscernible] thank you. >> thank you.

>> a hearing on how the government grants security clearances. "washington journal" is live at 7:00 eastern. a couple of live events on our companion network c-span 3.

the senate judiciary committee looks into government surveillance programs at 10:00 a.m. eastern. when this is an kludge and skull. include -- witnesses james cole. friday marks 50 years since the assassination of president john f. kennedy and our special coverage includes your calls remembering the day during "washington journal" and that 10:00 a.m., the rarely seen nbc news coverage when they first reporting -- reported on the coverage. and to boston for the jfk presidential boston library and museum for a musical trip to james taylor.

now a hearing on how the government designates workers as sensitive and how grants security clearances. representatives of several agencies testify that they're working to improve the process but watchdog groups said federal agencies more -- need more oversight. this is an hour and a half. [indiscernible]

>> call to order the hearing. entitledrnoon is "safeguarding our nation's secrets." portmanay that senator will be here little late and he will have to leave early. it is not because of the importance of this issue, it is because we have a defense

authorization bill on the floor and that is keeping a lot of the folks who wanted to be here today away. we will do our best to get as much good information as we can on the record as we proceed through this so that they will have the ability to make good decisions with good information as those decisions arise. it is clear to the american people that the federal government is failing to those who have access to secure facilities. there were real of consequences of these failures. it is obvious that there is no single quick fix. incomplete, falsified, and ultimately background investigations and reinvestigation's.

today there are nearly 5 million individuals with a security clearance 5 million. there are no indications that that number will decrease anytime soon. it only takes one individual to slip through the cracks. one individual who could do untold damage to our national security by exposing sensitive information about government actions and programs. one individual who would no motive come with no warning could kill 12 men and women on a random monday morning. we have to get this right because there is a margin for error. this hearing will focus on the designation of positions in the federal government as sensitive to the national security as well as the requirement for government personnel to have access to government -- classified information. federal agencies are currently relying on federal orders,

regulations, and an office of personnel management position notgnation tool that was created to address security- related issues. others including several witnesses have real concerns that the proposed guidance is havequate and it could negative and substantial implications on taxpayers, national security, and federal employee rights. this case involved to federal employees who lost their jobs when the agency stripped them of their sensitive position status. denied them due process and there is a real potential the tens of thousands of employees across the federal

government have just lost their fundamental right to appeal personal decision regardless of what drove the decision. with this in mind, we wrote a september regarding the proposed rule. andaid that from a fiscal security perspective far too many questions remain unanswered about the implications of this proposal and due to the seriousness of the concerns that we share we urge you to do for finalizing this row once the matter has been fully and publicly aired and questions about his true scope -- it's true scope are answered. we are here today to get some of those answers. i would now like to introduce .ur witnesses mall.t to welcome the -- them all.

this is a great panel of witnesses. the assistant director special in they directorate office of the director of national intelligence. he is responsible for leading oversight and reform efforts of the security clearance process. he has more than three decades in the cia. i want to thank you for your service. i want to thank you for joining us today. prior to his current position, he served as the executive director of the labor management

and employee relations at the department of defense. thank you for being here and getting to the traffic to be here. the director defense capabilities. she has held this puts us in thousand seven. this post since 2007. she testified group of the subcommittee in june. -- before the subcommittee in june. ands good to have you back we look forward to your testimony. af ge represents 50,000 federal employees.

he is a veteran on labor relations issues and and see her to discuss the impact of the and its impact on federal employees. we look forward to what you have to say. angela canterbury. director of public policy for the project of government oversight. she has worked since 2010 in that capacity. they have aggressively advocated for more appropriate balance between national security and civil service rights. angela's work focuses on advancing policies that help stamp out corruption and promote government openness and accountability. she is here to help us understand how the rule might impact transparency and whistleblower rights. we welcome you and i want to

thank you and everybody else for being here today. it is customary that we swear all witnesses and who appear before the subcommittee. please stand. hand.your hand, right raise your hand place. do you swear that your testimony will be the whole truth, the truth, and nothing but the truth. -- whatrecord reflect the record reflect that the witnesses answered in the affirmative. we will give each of you five minutes for your testimony. your testimony will be a part of the record and we will start with brian if you want to proceed. >> thank you. thank you for inviting me here today. i -- odnithe od and

proposed changes. revisions included more detail than previous regulations are to ensure a consistent process applied across the government for designating positions as sensitive or requiring a security clearance. this foundational step helps ensure that individuals are investigated at a level appropriate to the risk inherent to the position i hold mitigating risk to national security interests. was publishedule in the federal register for a 30 day public comment in may 2013 with comments due in june. we are in the process of reviewing, it's and finalize proposed regulations vie february 2014. increase the 9/11 security clearance number -- a

trend which has increased in recent years. our office reported that this year about 4.9 million federal government employees hold or have been determined to be eligible to hold security clearances. potential risk to national security and cost associated with this volume underscores a need for executive branch agencies to have a uniform and consistent process to accurately designate the sensitivity of a position based on the position duties and potential impact on national security and ensure that the individuals holding these positions are appropriately investigated and adjudicated commencement without risk. -- commensurate with that risk. civilian positions within the federal government have been based ond as sensitive duties and responsibilities for over 60 years.

employee hiring and retention is clearly consistent with the aterests of national security position should be designated the sensitive if that position by virtue of the nature of the position bring about a material adverse effect on national security. another executive order which was instituted in 1995 establishes a uniform federal personnel security program for individuals to have access to classified information which only may be granted on the basis of a demonstrated foreseeable need for that access. agency heads responsible for establishing and maintaining an effective program to ensure that eligibility for access to classified information

is clearly consistent with the interests of national security. the existing designation system requires revision to align with other recently updated aspects of the reform efforts such as the revised federal investigative standards signed in december 2012 and to ensure a common understanding. both of related roles to ensure that a uniform system for -- respect to publish in the authority. is notposed regulation designated to increase or decrease the total number of national security sensitive positions within the federal government, but rather to ensure that each position is designated accurately.

the intent is to issue national policy guidance to promote consistency and adjust change national scaredy concerns post- 9/11. 9/11.curity concerns post- this will promote efficiency and facilitate reciprocity. the proposed regulations are aligned with the gao recommendations. the gao noted the need for standardized and clearly defined policy for agencies to designate positions as sensitive or requiring a security clearance for existing positions to be updated to include such guidance. the regulations also incorporate the gao's regulations --

recommendations that they review and validate or revised designations of existing positions. tos guidance is expected have positive implications for both national security and federal workforce. the proposed rule unrevised position designation tool will provide executive branch agencies with consistent guidance and a concrete process to accurately reassess the sensitivity level assigned to the current positions and ensure future positions are designated accurately and consistently. rule will help guide agency heads and designating a position as sensitive with respect to national security even if the accessn does not require to classified information. if the enhanced guidance will facilitate more uniform designations across agencies which are better aligned to the actual national security implications and sensitivities inherent with the position. this process is expected in some cases to result in the

redesignation of positions to a lower sensitivity level or public trust designation. thereby that will reduce the cost associated with investigations and adjudications required for higher clearance levels. conversely, there may be instances in which the sensitivity designation of a position increases, requiring more extensive background information depending upon the redesignated sensitivity level. if that happens, the workforce can be assured that the changes necessary and based upon the measured x duchenne of the updated guidance necessary to protect the national security interests. the new regulations are intended to cover the position designation requirement and provide additional details over the previous regulations in order to ensure that decisions are accurately designated in a manner that appropriately mitigates the risk. workforce will benefit from accurately designated

positions in that employees will not be required to complete extensive back on information or -- for positions that do not warranted. this approach promotes clearance reciprocity and personal mobility between positions of equivalent position designation between agencies. it is imperative that we develop a sound position sensitivity designation process because the sensitivity level of a position determines the black city and cost of the investigation disgusted -- the investigation conducted on the individual. it should include requirements for agencies to conduct periodic reviews. thank you for the time to testify.

>> thank you. you are up next. thank you for the invitation to testify on behalf of the office of personnel management on regulations affecting the designations and the federal government. the obligation to designate national security positions is not a new authority. it is outlined in an executive order which was published in 1953. eachfr presently requires agency to follow established procedures to establish national security positions. the jointly proposed regulations and may of this year regarding the designation of national security positions in the competitive service. similar regulations have been in effect for years.

this will simplify and three monday decision. decision.ine the those proposed amendments were redrawn and reissued in may 2013. pursuant to the presidential memorandum. memorandumntial recognizes responsibility both agencies have with respect to the rulemaking authority. proposal reissues that proposal with modifications providesfications and the public an opportunity to submit additional comments. will clarify designating national security positions positions in the competitive service positions in the excepted service with income but can be converted to the

competitive service. rule is not intended to increase or decrease .he number of positions it is intended to provide specific guidance to agencies. provider regulations general guidance. the new proposed regulations are intended to clarify the guidance and procedures. in addition, the new regulations will help regulations -- sensitivityress the levels and the background investigations that will be required. the proposed rule addresses checks for national

scaredy positions where requirements are arty in place. -- already in place. the proposed rule was published in the federal register. we are presently reviewing comments from members of the public. the subcommittee also invited opm to testify on the kaplan versus conyers case. the merit systems protection board lacks jurisdiction to federal government risk determinations with regard to eligibility to hold sensitive positions. conyers examined whether an adverse personnel may review the department of defense's particular judgment of national scaredy risk.

on appeal of the decision, the federal circuit concluded that whethert can review dod's action is procedurally correct, not whether they correctly exercised the judgment of national security risk. the federal circuit held that this did not give them the authority. long-standingn precedent, specifically the 1988 decision in the department of the navy versus aegon. the federal circuit held that aegon controlled all such national security determinations not just those related to access to classified information. thank you again. >> thank you. thank you for the opportunity to be here today to discuss the requirements for personnel to have access to classified information.

my testimony on the governmentwide security clearance process before your subcommittee this past june and included a discussion of our work on the steps that agencies use to first the terminal whether a federal civilian position requires access to classified information. elaborate, process and report on the extent of process and progress -- process by the agent -- progress by the agency. gao has conducted a broad body of work on issues that gives us the unique historical perspective. my main message today is that actions are still needed to help ensure that a requirements process is in place to determine whether a security clearance is needed to -- for axis twos -- access to information.

reported thatwe we had not provided agencies was clearly determined policies and procedures if a position requires a clearance. agencies are using a tool to determine the sensitivity and risk levels of positions which informed the type of decision that is needed. the sensitivity level is based on the potential of a document of a position to bring about a material adverse effect on national security. audits found inconsistencies among agencies using this tool to determine the proper sensitivity level. audit, the 2012 sensitivity level of 39 positions was assessed and the designations differed in 26 of them. dniecommended that the

issue clearly defined policy and procedures for federal agencies to follow when first determining if a position requires clearance. in january of this year, the adjustnt offered -- regulations to provide guidance for nate not -- national security regulations. the proposed regulation is a good step. implementation guidance stillness to be developed. the proposed regulation recognizes that point. the guidance in place to periodically reassess civilian editions that require security clearance. the dni had not established such guidelines. requirement,a agencies may be hiring or

budgeting for initial and periodic percent no clearances using position descriptions and security clearance requirements that do not reflect current national security needs. since such reviews are not done consistently, agents cannot have assurances that they're keeping the number of positions to a minimum as required by executive order 12 968. --ducting background it investigations is costly. in july 2012 that the dni issued guidance to federal civilian positions. the proposed regulations do not appear to require a periodic reassessment as we recommended. we still believe this needs to be done. for more than a decade, we have

recommended the need to build and monitor the security clearance process to promote oversight and positive outcomes such as maximizing the likelihood that individuals who are security risks will be scrutinized more closely. first up to a sound process being in place to determine whether or not positions need access to cost five information -- we will continue to monitor the outcome of the final federal regulation as well as other agency actions to address the remaining regulations. this concludes my remarks. >> thank you. on behalf of afge and our , i thank you for the opportunity to testify today. concerns about the recent decision issued by the u.s. court of appeals for the

federal circuit in kaplan the conyers -- kaplan versus conyers. the conyers decision and the proposed regulations strike at the heart of the merit system which for decades have been the foundation of the federal civil service. conyers eliminated the right to a meaningful hearing before a u.s. merit systems protection board and proposed regulations exacerbate this problem by examining -- allowing regulations -- allowing -- conyers and the proposed regulations are only the latest injustices imposed upon federal workers thanks to a pay freeze, , and a 16 day .urlough with the shutdown

some fell into debt or deeper into debt. that additional that potentially exposes thousands of federal employees to unpaid removal from sensitive positions without so much as a hearing before the committee. , conyers does not pertain to individuals with security clearances. it is not a case about classified information. the individuals and that litigation were an accounting technician and a grocery store clerk respectively. both plosser eligibility because of a modest amount of delinquent debt due to circumstances beyond their control. they were penalized because of their credit scores and worse they had to face the loss of their jobs. this is deeply troubling to afge and it should be a real concern to this committee. hardshipthat financial

is unsupportive and offensive. that the practice of penalizing employees based on their credit scores has added ons apportionment impact employees over 40, female employees, and employees of color. conyers is an ill-founded extension of an earlier case. the department of the navy --sus aegon held that the the merits of the security clearance cannot be reviewed and that course of adjudicating an adverse action. in the absence of a security clearance. -- theeral service the taxruling rejected structure and the history of the civil service reform act along with the plane language of

aegon. that employees ineligible to hold a sensitive position. the proposed regulations provide no real oversight for agency position designation determinations. these new rules fail to direct the agencies. the occupant of that position could cause the me too real adverse effect on national security or neglect, action, or inaction. if both conyers and the proposed regulations are allowed to stand, executive branch agencies will have the unreviewable power to deprive hundreds of thousands of employees the protection that congress gave them in the csr a. that is likely to be an irresistible invitation to abuse.

hr 3278 to clarify that workers afge strongly urges introduction of a companion bill in the senate with the same bipartisan support shown in the house. toe does look forward working with members of this committee to restore fairness and common sense to due process protections and other rights historically protect the the federal workforce. this concludes my statement, and i would be happy to respond to any questions. >> thank you for your statement, david. angela? very much for the oversight of the national security workforce and inviting me to testify. i am speaking on behalf of -- i am also speaking on behalf of the make it safe coalition which represents over 50 groups of millions of americans.

very concerned with whistleblower protections in the public and private sector. we are deeply concerned the national security claims here and throughout the government threatened to engulf our government and with cruel irony will make us less safe. and august this court decision in conyers stripped federal employees with national security sensitive divisions their right action anddverse also stripped due process rights for actions that are stimulatory or retaliation for whistleblowing. this deeply flawed decision arms agencies with sweeping power that affects untold numbers of civil servants. i am told because opm cannot say exactly how many position onders there are, the1045.0 national security, must have objective, credible boundaries yet in conyers the government did not provide adequate boundaries or justification for national security sensitive estimations.

indeed, rhonda conyers was an accounting technician and -- the other -- neither had a real credible national security role. while there is a need for additional screening for very limited number of civilian positions with a specific national security responsibilities but no access to classified information, extensive background checks should never be predicate for denying due process. the opposite -- congress gave the civil service and whistleblower protection to this critical workforce to foster accountability for waste, fraud, and abuse. these workers for years had been able to challenge adverse personnel action that the merit systems protection board, but not anymore. now as of the agency fires in national security sensitive employee having made legally protected whistleblowing explosion or -- exposure or because of their race or religion the employee might not be able to seek justice. it is just a matter of time. as was noted in the benton oral argument in conyers after aegon it removed due process rights

for security clearance actions it was inevitable the board would do the same for whistleblower italian should -- retaliation as they did for hess v. department estate. because it is so broad it flouts the intent of the reform act and whistleblower protection act and strongly bipartisan whistleblower protection enhancement act, reforms who work for years to act. of course, even before conyers there was a jaw-dropping lack of oversight of the seemingly arbitrary and overuse -- overuse designation. at the direction of the president, opm and nis issued a joint opposed to rule to clarify proper use. we agree it is about time. but unfortunately it does nothing to assure us that the obama administration plans to curb the practically unlimited discretion afforded to agencies. improved sufficient oversight or protect critical rights for

whistleblowers and civil service. in fact, the proposal is poised to expand the use of these designations to overly broad categories positions such as senior manager and undefined programs and the fact-finding positions. before final rule, far more needs to be known about the scope and cost, impacts, due process protection, and oversight of these designations. we would welcome a direct from the president clarifying access and for opm and odni to curb the expansive use of these designations and conduct proper oversight. however, we believe that ultimately congress must reassert the right it previously provided. we urge you to advance an easy legislative fix. simply clarify that if an employee appealing and action arising from an eligibility determination for a position that does not require security clearance may not be denied mspb review. this is the delicate holmes

norton legislation that was mentioned. can -- urge you to consider the growing can't -- the national growing security state. againston you overreaction. excessive secrecy undermines democracy and threatens national security by making it harder for us to protect our legitimate secrets. the evidence for the growing national security state is disturbing. as you mentioned, chairman, we have almost 5 million security clearance holders. approximately 20 million four drawer filing cabinets can be filled with the amount of classified data accumulated every 18 months by just one intelligence agency, according to the gao. it is time for congress to be far less deferential to the executive branch on claims of national security. you can begin by bringing in a nearly unbridled power of agencies to misuse national security labels and make wolf wilds of our government a hit and an unaccountable.

we must be able to hear from whistleblowers. thank you, again, for inviting me to testify today, and i look forward to your questions. >> thank you for your testimony, angeli. and i think all of you for your testimony. we will get to your questions right now. some of this is going to be repetition from what some of the panelists said, but this is for anybody who wants to answer. in terms of the conyers decision, talking about two federal employees without a security clearance or any need for access to classified information. one was in accounting technician. i assume that a similar to cpa maybe or not even at that level -- >> lower-level accounting. >> lower-level accounting for the defense department. in that position for 20 years. the other was a clerk in a commissary, which indicates to me probably ran a cash register. fairly accurate? >> he was a grocery store clerk,

essentially. he ran the cash register and our shelves. >> because of delinquent debt to brought about by horse or death of a family member, they were restrict is from the ability to hold a government position designated as sensitive to national security -- brought about by divorce or death of a family member. they were subsequently stripped of their rights to appeal these decisions of the marriage service protection board and basic right of federal employees. questions tomany be asked about this. i will just start with the basic one and that is, can somebody explain to me how these actions were carried out in the best interest of our national security? want to jump in on that?

no? ok. let me just ask you this. you've got a position that is designated as sensitive. and then you have a person in that position that does not have any level of security clearance. correct so far? and yet that person is fired because they've accrued some debt beyond their control. and that is deemed as being ok? that is the first question? no? anybody want to talk about that question mark anybody want to tell me why that is ok? senator, as you may know, afg a pile -- filed a appeal to the supreme court. i may be limited on what i may say in the case because the --

but i guess the point i would make on this is, one, an ,xecutive order 1045.0 positions could have national security impact, whether they have access to classified information are not. opm went forward pb's decisiong ms is the director of opm has authority under law when they believe mspb issued an erroneous interpretation of civil service law, rule, or regulations. so when the director sold thensideration on this, intent was to preserve the executive branch's authority to make risk determinations as far as national security positions. >> i got it. i gete put it on one end -- it, if you have somebody with a high security clearance mao somebody some money, that could

possibly compromise what is going on. these guys do not have a security clearance at all. they were working in sensitive positions but they did not have security clearance. me -- and wecapes are going to get further down, because you have to start here to get down into the real problems of this. it escapes me how a grocery could be put at the same level as somebody who is dealing in the department of defense with really sensitive withmation, or in the cia really sensitive information that owes somebody some money. --onestly got don't get first of all, i don't get how you can a person -- a person working in a position deemed as sensitive and did not have a security clearance. i don't get that at all. and secondly, if they don't have a security clearance, i can't understand how they can be fired for that reason and not have any appeal rights?

partly because they basically accrued debt. am i on a different level here? does it make sense to you guys? >> senator, i am not in a position to determine what level you are on, but i can -- >> i take that as a complement. >> i take that as a compliment, sir. it iss particular case difficult for us to speak on behalf of dod, but as you mentioned, there are two points. one, in fact, they were in what was deemed at the time central positions. >> but they did not have a personal clearance. they had not been vetted. between is a difference a sensitive position and having clearance, as we know. and the reason the position was considered sensitive is not based upon whether they were going to have access to classified information. it was -- of the position cause any kind of adverse impact of national security? in this particular case, if you have access -- hypothetically,

if you have access to a food fact haveu could in an adverse effect of national security of the food supply in this particular case is dod. >> do you think the folks down serving the buffet are in sensitive positions? they have access to food. i eat, as you can tell, more regularly than i should there. [laughter] again, sir, i will not comment on that last statement, for sure. the designations are done by the individual organizations, and i would leave it to the appropriate organization to determine. >> let's get back to where you are going -- you are laying down laying down,pm are in concert, laying down some regulations that agency can -- agencies can follow, right? once the agent -- regulations are laid down can you tell me whether the folks down the

survey can be designated in sensitive positions? isonce the regulation enacted, sir, what the regulation will do is provide you much clearer guidance so that we have uniform consistency across the determination factors, so that when you are making a determination on a particular position, the guidelines and the standards by which the position will be judged against will be consistent across the u.s. government. regardless of whether you are working in the fda or sba, the same guidelines will apply, correct? 1400ll, sir, the cfr applies to competitive service. but the idea is to apply that eventually across the u.s. government for consistency. >> just to get to your point -- once you get the regulations down, they will apply across every federal agency equally, correct? >> yes, sir. >> ok.

so, who is going to make sure that the agency actually utilizes -- and i don't want to pick on you. who is going to make sure the agency actually utilizes the rules? >> senator, i echo brian's remarks. you know, the idea here is that the current rules that apply so 732, they provide some very general guidelines. whereas the proposed rule is providing more concrete examples. so, the goal here is to allow in makingrovisions the sensitivity designations. opm and odni both have oversight roles that they can assess how thesees are implementing rules. we expect to also develop implementing guidance and also update the position designation

tool which will also provide for more consistency across the government. we are trying to minimize is under designation of positions where it might impact national security and minimize over designation that might increase cost. --where iss going to the oversight of the agencies to use the rules you are putting down? is a voluntary? or is somebody -- where is the oversight coming from? that is the question. the question is, you can put down the rules and if they decide not to use them, you don't have rules and you don't have consistency, you are not going to achieve the goals i think you want to achieve. so the question is, who has oversight? oversight is a dual role in the case -- both opm from suitability side and odni from security side. so, pick an agency -- department of justice, cia, dod,

you are going to provide oversight to see they use the rules? >> yes, sir, that would be our responsibility. so, how many sensitive positions do we have? i've got to be quiet here. i'll come back. senator portman? >> thank you, chairman. think about that question. first, thanks for holding the hearing. this, as you know, our second hearing we have held. there also has been a hearing at the full committee level on this same issue. i think we have all acknowledge there is a need for significant reform with regard to the security clearance process. and this is not our last hearing, so we will continue to work on this. we appreciate you being here today and giving input. sorry i'm a little late. this is kind of a crazy time i know with the budget conference going on. but i am pleased we made a little progress, even in the last couple of months. we have legislation that senator

tester and i introduced that passed, call score act, and he gives important oversight abilities on this, too. the inspector general and opm -- i think you are familiar with. we are actually working on additional legislation now that we think will also be able to move pretty quickly because it is bipartisan and i think it makes the system more accountable and more efficient. the defense authorization bill, on the floor this week. we've got an amendment that asks gao to examine all of the metrics and reciprocity as it pertains to the process. and along the same lines we ask omb's performance accountability council to examine how we can improve the processes for access to state and local law enforcement records in the background investigation process. that came out of the tragic incident at the navy yard with xis.n ale i came up in one of the hearings.

again, better access to state and law enforcement -- local law-enforcement efforts would have been helpful in the background investigation for him and would have been a way to shortcut some of these investigations. arey, as you have heard, we focusing more broadly on the question of who should have access to information, how much information should be classified, how can we more efficiently and effectively go through the clearance process. i appreciate your testimony. i had a chance to hear from some of you and look at some of your other testimony. i am going to focus in on overclassification, because that is one of our issues here. ultimately we are not going to be able to keep up with the clearance process if we continue to classify so much information. so i think we need to get back to convey the root of the problem. and if we have time i will as more questions along the lines of the chairman was asking. overclassification -- not to have a bias here -- we have had in our committee hearings and the full committee hearings the

consistent theme coming up that there is more information being classified. and it is a concern. is our for the people we represent, our constituents, to get access to information to understand how government works and how it is conducting itself. everything is classified, then nothing is classified, in my view. to an extent. you are not the careful about what you prioritize. it is tough to protect information that really is a national security importance. not making that information available to the public might be one reason the national security sector sometimes is interested in classifying even when it might not have a national security implications. so, this public interest the cb,ssification board, pi established back in 2000, saying a single intelligence agency classifies one petabyte of data every 18 months.

millionvalent of 20 filing cabinets filled with text or approximately 13 years of high definition video. , a single intelligence agency classifying that much every year and a half. so, i does volume should not be the only indication of the metric that it certainly seems like a lot of information that frankly is very tough to keep up with. so, starting with this notion of how much we should be keeping under lock and key, i have a couple of questions. and by the way, the cost of this is growing, too. from 2000 1-2011, the cost went $13.64.7 billion to billion a year. $13.4 billion -- $13.36 billion,

the cost. by the way, it does not include the $1 billion needed every year to clear the person authorized to have contact with this information or to work with this material. odni,ybe starting with mr. prioletti, we appreciate you being here today because you probably have the most expertise on the national security side to be able to talk about this. do you think we are classifying too much, too little? and tell us what goes into the decision-making process for something to be labeled as classified or sensitive. >> thank you, senator. i i think what we do is classify what we feel is necessary at the time. i don't think we are in the position to say we over classified or not. the volume, as you mentioned, is

epic. there are guidelines that are set specifically to determine what information needs to be et ofified, and that s guidelines is used to determine when information goes under a classification or non- classification status. and i think we are using those as judiciously as possible. the pace of business and the theging threats in environment we are working in this acetate that we look at information on a daily basis and make the determination using the guidelines i referred to. tools we arenew talking about, the new regulations and so on, is for determining whether somebody has a position that should be designated as sensitive, but you've also got tools you're using to determine whether something is classified or not. of do you believe the kind tools you have available to you are appropriate to make those decisions? i believe they are

appropriate. but they are evolutionary in nature and may change to meet the changing environment in which we work in. here's one of the other data points we have from this pi theharge that looking at classified information about it is growing or not. they are the ones indicated it is growing so dramatically, $4.7 billion to protect it roughly 12 years ago to over $11 billion today. that it would take 2 million employees one year to one petabyte of information. and as i indicated, one petabyte of data is now being collected every 18 months by a single intelligence agency.

so, 2 million employees one year to review it. obviously we don't have the workforce to review that information. is that a concern? sir, if you mean if there is a concern over the numbers you just listed or the lack of personnel? >> it is not practical. i am sure you guys would like a bigger budget but there are not going to be 2 million employees review even this one petabyte we talked about. just give me a sense of whether tackling this issue of the classification and trying to ensure we have the classification we need but don't over classifiy. and if not, how can this be justified? towon't have employees review that as it will not be useful information. what is odni's latest effort on the classification? thehat we do is we provide

oversight and guidance to the organizations. as i referred to the standards and one of your earlier questions, that particular guidance is executive order 1352 6 which lays out the standards for classifying information. basically that information is tied to two areas. it is tied to potential damage to national security in the av authorized -- an unauthorized disclosure and the damage. that is the overall guidance provided to organizations. 26 is look that any periodic basis to look at whether it is valid or is there any need for change. that is how we continue to provide oversight to the organizations. theet me take you off of hot seat for a minute and go to brenda farrell, if she would comment from an oversight perspective, more general perspective. the you think there is a problem of overclassification, and if so, do you think odni and others

are doing the right thing to declassify information? ofgao has looked in the area what is in place for classified material but it has been several years. we have just initiated work in this area, and i would be more than happy to have the team, and explain the scope of that work to you or your staff, if you'd like. is gao doing a specific research project on this issue of classification? >> yes. >> that will be prolific that would be perfect if you could provide the subcommittee with that and maybe the subject of a future hearing. ms. canterbury, you mentioned, if i recall, you think the legislative branch or vibes to much deference to the executive branch of classification. can you tell us what -- what you think that what you think and be done? >> i think on a range of issues. i think classification is one of them. i think the national security claim is being used in more and more contexts now, and it sounds to me the executive branch itself is not conducting proper oversight, and i thiank you very

much for this hearing and the previous hearings you have had in this area, because i think it has been long overdue. so now all of this congressional attention in this space hopefully will spur some action and create some internal controls that are really lacking. >> thank you. my time is over. but i appreciate you all being in today. this is just another hearing in our attempt to try to get at this issue. not just overclassification of material but also the security clearance process and how do you make it more efficient and more effective to avoid the problems we saw today. thank you, senator portman. i appreciate your work on this issue. and i know you are busy. forpreciate you being here while you can. so, thank you. i want to go back where i left

off, and that was we were talking about sensitive positions. we were talking about security clearances for people. both of those issues. how many -- and this is for anybody. and if more than one went to answer. how many sensitive positions have been designated? it is difficult to estimate the number of sensitive positions across the government. but i would note that the number of sensitive positions does not necessarily equate to the number of security clearances. because not only are our regulations dealing with competitive service employees, but we also have -- accepted service, and security clearances apply to accept the service employees as well as contractors. so it is difficult to estimate. >> david? chairman, it is

impossible probably to estimate. but under promote is proposed regulations, everybody in the department of defense could be designated as holding a sensitive position. so we are talking about hundreds of thousands of employees who are being m potentially denied spb right. let me illuminate something based on what you said earlier. conyers and the regulations were so insidious for two more reasons. one is, the conyers and northover were both serving in for years before their position was suddenly redesignated as sensitive position. redesignation, they were suddenly scrutinized for their credit ratings and summarily brought before the agency and action was taken that was later deemed -- deemed unreviewable. that is one thing. longpublic servants,

service, no problem at all, invisible to government with the credit looks like, who cares, and then suddenly with the stroke of a pen they are hauled into this process. secondly, because it is unreviewable we have not been told to this day what it was about mr. northover or ms. position that merited this treatment. the government at some point in the i fail to see, as i'm sure the chairman does, how that's a security risk to the nation, unless we're ruling out an amphibious assault on the city of seattle, where the sun never shines. >> yeah, go ahead. >> mr. chairman, our work that we conducted in 2011 and 2012 found that there was a lack of guidance to help determine the sensitivity, the 732 was in lace, but it was very broad.

in the course of our work, rerepeatedly had officials tells the definition was so broad it could capture just about any position. steps were tine put some parameters around that is much needed. it's tonight say that by itself the federal regulation can answer the mail, but it is a start. >> you're talking about the one that was initially put on the books, or are you talking about the one that was presented in may of 2010? >> may of 2010, which does repeat quite a bit of what was previously put on the books. the difference is some of the problems that we discovered in 11 and 2012 was that the d.n.i. had not taken an active involvement with o.p.m. in this particular area, and that was ue to their evolving roles that they both received a designation of the security executive agent as an ability

in 2008. so there was a while there, a period where they had been determining exactly how their roles would interrelate. >> ok, so -- and i may not have the month right, but i think it was may of 2010, is that right, or is it december 2010? >> senator, the original regulation was proposed in december 2010. i'd like to clarify a point with regard to every position in d.o.d., designated a sense -- as we noted in the explanation in the supplemental that have proposed rule in december 2010, each position designation is going to be based on a review of each individual position based on their duties and nature of their work, not a broad class of employees across the agency based on their mission. >> i'm not sure that he said

that. i think what he said was he could take each position and designate it, you could literally designate the whole d.o.d. let me get to the rule of 2010, nd you said it was not adequate, correct? >> well, it did not have the involvement of odni, and odni is the security agent responsible for making sure there's uniform policy, and now with the current proposed regulation, it does acknowledge odni's role. >> so odni is involved now? >> yes. >> does that make the rule -- have you seen the rule, the february 14 rule that they were going to get to put in stone? have you seen that rule? >> the proposed regulation, yes. and it does -- >> is that adequate? >> by itself, no.

and the rule does note that implementation guidelines are the responsibility of odni with o.p.m., and that is definitely that will be needed to make sure that there is the oversight you're talking about and quality controls in place for the agencies to implement t. >> but ultimately in the end, is it giving the agencies the ind of guidance they need to develop some uniformity? does it give them the metrics to both determine which positions need to be designated as sensitive? i assume it deals with security clearances too. >> it provides more detail. some of it is very similar to the old rule in terms of the definition of national security , positions, national security positions under the old rule. >> was the old rules adequate as far as that goes? >> apparently not, based on the work that we conducted in 2011 and 2012, because it was so

broad, the agencies had difficulty. >> so are we heading back to the same spot? the new rule is very similar to the old rule, and the old rule wasn't adequate. >> well, the new rule does expand on the definition of national security positions. it includes some of the key positions that were named, but then it tweaks it and expands much more -- >> still not adequate? >> i don't know. >> i thought you said there were studies done in 2010 and 2011 that said it wasn't adequate. >> we did our review, but we issued it last year, we found that there was guidance not adequate to help the agencies determine the suitability of positions. that did not include any proposed changes, because those were never implemented. >> ok. david, you had something else. >> yes, mr. chairman. the new rule, the new version of the rules that were published in 2010 omit key provisions that talk about what

the agencies have to do in order to designate a position as a national security position . the 2010 rule would have required an affirmative determination that the occupant could cause a material adverse effect on national security. that's been deleted. so there's no direction, and certainly it will be easier for the agencies if they don't have to make that hurdle. as you talk about oversight, for our money, the oversight that's required here is review on the back end. >> tim, you want to talk about that for a second? why was that deleted? a.o.m.p. and odni by these regulations and by our implementing guidance will provide detail on uniformity and isn't can i across the government, but under the executive order, 10450, each agency has had an responsibility to make the position designation. what we're trying to do is assist them in exercising their authority by trying to insure

uniformity across the government. >> why would material adverse affect being taken out? >> sir, there's a reerment of executive order. this rule is implementing that executive order. >> ok. ok. about back to the part different agencies, and you're right, the head makes that call . are they bound by anything other than just their respect for you to utilize the rules that you put forth? >> well -- >> the agencies, yeah. >> for purposes of consistency, yes, they will ply these rules, but they ultimately make the designation themselves. >> so they -- just to be clear, and this isn't picking on anybody here -- to be clear, the agencies can determine whether to use or whether to go their own way when it comes to those designations? >> no. no, no, sir.

>> they have to use your rules? >> they have to use our rules, but they make the ultimate final decision when applying these rules. >> ok. >> and senator, just for clarification, when they're plying these rules, they're in the best position to look at the positions and their agencies, the nature of those duties of that position and determining the adverse impact on national security, if there's action, inaction, or neglect to duty by the person in that job. >> ok. mr. chairman, just so there's no misconception on the part of the committee about the consistency and the integrity of this process, i would point out that in mr. conyers' case, the agency reversed itself and expressly cited pending litigation as a reason why they were going to drop the redesignation. and in mr. northover's case, he was later restored to this

sition as the result of an unrelated-e.e.o. claim and has since been promoted. we can talk about consistency and about applying rules and so forth. the reality is, on the ground level at these agencies, it doesn't happen. these managers are manipulating the process. >> i hear you. >> look, what i want to get to, i want to make sure that -- and i think that angela brought this up in her opening statement, cost oversight, due process, all those things need to be handled. i'm an open government guy. i think the more transparent government, is the better government works. and i also understand that there are people who want to do a lot of harm to this country, so we've got to make sure that the folks that really do have access to sensitive information are properly vetted. why we don't know how many sensitive positions are classified within government is

disturbing to me, and maybe i shouldn't feel that way, but i do. i think if we've got agencies out there that are arbitrarily, and i know that was part of the goal for the rule is to get rid of the arbitrary nature of designations, but if they can still do that, and the only person that knows that without a doubt are you guys, probably everybody at the table, as a matter of fact. but if they can arbitrarily do what they want as far as determining which positions are sensitive, because they can find something out there that would do that, i mean, the example of food was a fine ample, because we all eat, why -- he is the question is, are we going to end up with another snowden incident or another naval yard shooter

incident because we've got so many of these things to do that folks end up cutting corners in the process? i don't mean to verbalize too much about this. angela brought it up. we've got a situation where we've got so many people out here with security clearances that corners are being cut now to get those clearances done, and a person could deny that, but the proof is in the pudding, and look what happened with aelectric is. i guess oversight by the legislative branch is something that i think we ought to take back a lot of the power that we have to make three equal branches of government. and hearings like this help. any other suggestions that you might have, angela, as far as what we could do here to make sure that the rules that odni

and o.p.m. are putting in place actually do what i think you guys want them to do? and yet doesn't break the bank, protects due process of orkers, and -- government. -- go ahead. >> thank you very much. first and most importantly, congress is going to have to fix the law and make sure that these civil servants and whistle blowers have access to review at the merit systems protection board. that is an absolute first must. secondly, these positions need to be better understood and categorized before a proposed rule, before a finalized rule. it should have been done before the proposed rule in our estimation. i might suggest a process similar to that with the analagous in information. we had all of these strange secret markings that proceed live rated, right, and the

agencies were just marking things for official use only, secret but unclassified, and so the obama administration put together a process to try to rein that in and have some rationale for information that is not classified, but is controlled by unclassified. and so an inventory took place. i might recommend something along those lines for these positions f. we really want to get a handle on legitimate designations, then tell us what those are. i mean, i'm a little confused like you. like, if there's not a security clearance, then what are the legitimate designations for national security? tell us agencies, and then base a rule upon that designation. >> you're saying tell us what the metrics are for determining the position. >> yes, absolutely, and which positions you're using now and have a really good thorough look at whether or not those can be streamlined into very, very narrow, very specific,

concrete categories so that the agencies don't have wiggle room. then you need to have some oversight over that process. o.p.m. has not been doing its job. they were given responsibility by president eisen hour, an executive order 10450, and they are supposed to be overseeing how the agencies designate this. i mean, what we've heard today is they're just letting them do whatever, and after this rule, they also will be completely differ she will to the heads of these agencies. they have no plans to go back and check whether or not their rule will be applied properly. >> i'll let you respond to that, tim. >s i noted earlier, o.p.m. and odmi do have a joint rule, and there will be oversight, an assessment of how the agencies are plying these rules, so i would respectfully disagree with that. >> ok, and excuse me for not knowing this answer, are there metrics within the rule?

>> i'm culting. >> that's perfectly all right. >> there are reporting requirements, so based on the reporting requirements we can learn information on how they're implementing this, but there's no specific metrics. >> if there's not metrics in the rules, do you have metrics to know that they're implementing the rule in a way that it is intended? >> ok, sir, just what we're proposing in the rule is to comply with process efficiency requirements, additional data may be collected from agencies or taken action under this part. these collections will be identified in separate o.p.m. guidance, which is our current regulation, which deal with national security positions. so there's an opportunity for us that we would collect

additional data. do you feel confident that what you've done with the rule and your ability to collect additional data and that you have the man power to be able to en sure security clearances are given to those who only absolutely need them? >> well, i would note that this rule is unrelated to security clearances. it's only related to position sensitivity designations, so i would have to talk to mr. perletti. >> apply it to the designation of the positions. >> well, in addition to the rules and the implementing guidance and the updates to the position designation tool, those are tools that are going to help the agencies making those designations, being consistent. you know, there will be training that is offered by our federal investigative services,

and that training will be updated for agencies to again assist agencies when they're making those determinations. >> so putting that in montana talk, do you have the ability to make sure the positions that are classified are positions that are necessarily need to be classified? >> sir, i can't answer that question right now. knowing as we're developing implementing guidance, those are the kind of issues -- >> is that a goal? is that a goal of the department? >> we certainly as part of our oversight responsibilities would want to ensure that the proper designations are being made. >> ok. >> brian, do you want to speak about the security clearance angle? same group of questions, as far as making sure the folks who absolutely need them get them and folks who don't, don't. >> right. i agree with what mr. curry had mentioned. the cfr-1400 hundred that we

originally talked about was the designation tool, not a security clearance tool. and if i may speak to what angela mentioned earlier, asking for more detail, that's exactly what the proposed rule would do. it would provide more detail to the organizations in terms of guidance and how to determine those designations of the position. and we believe that this rule will get us a lot farther than we were in the past. this is not new, sir, as we mentioned in our testimony. all of us mentioned. the designation of positions has been going on since 1953, and it is an evolutionary process, and i think we continue to build and make a better product to address those issues. >> gotcha. i want to talk about security clearances for people though, ok? that's part of the other part of this, because we got five million of them, 1.4 top secret. is there anything being done in that realm to make sure that the people who need them have them, and the folks that don't need them don't have them? i don't know about you, but

five million seems like a heck after lot of folks to have security clearance. and 1.4 million top-secret security clearances seems like a pile. that's more than live in the state of montana by about 40%. can you give me an idea on if there's any metrics or any advice, any guidance is being again to agencies on that? >> sir, we have existing idance under 12968 and 128467. 1995. 8 was amended in 13467 came out in 2008, so they are not quite as old as 450. and those are the guidelines that are given to all organizations to determine classification -- excuse me, classification, to determine clearance granting for

individuals. it includes your aadjudicative guidelines, your investigative guidelines, and those are what are used by all organizations to make that determination and the security clearance is required for an individual or not. >> in your opinion, in your opinion, is that adequate, or are we making sure that security clearance are going to those who needly need that access to that information to be able to do their jobs? >> yes, sir, i believe they are, because they are revisited to determine that they are meeting today's environment in which we work. >> brenda, i want to get back to the rules and cod fakes of them. do you think there's a worth in codifying the guidance, the updated guidance, along with quality controls, periodic reviews, guidance beyond the 24 months proposed in the rule?

do you think codification is a good thing in this case or not necessary? >> what we do see missing is the periodic reassessment. there will be a one-time assessment that the agencies would be required to conduct within two years after the rule is finalized, so that is still in the piece. we still don't know what the implementation guidelines, which should be developed after the rule, but the implementation of these guidelines will be critical in order to understand what the oversight will be and what the quality controls will be. the rule, the proposed rule is an improvement over the current rule. the current rule again is so broad it is subject to interpretation across the board. the proposed rule does provide more information to help the agencies, but again, by itself nd without proper oversight, it's still unknown whether this will increase the number of

clearances, decrease the number of clearances, or whether there will be other issues, as some of the panel members had aised. >> ok. well, i think we'll wrap this up. i want to thank everybody for being a part of the hearing. look, i'll just say this. if we're going to -- hopefully we all have the same goals, and i think they were goals that angela put forth in her opening statement, and if she didn't do it, somebody else did, it's due process and oversight and all that stuff, overclassification. f those aren't the goals, then somebody's got to tell me what the goals are, because those ought to be the goals.

i think the only way we're going to get to a position where, number one, this doesn't break the bank and we can do a good job really classifying the positions that need to be classified is if we really laser in and give these agencies some direct and i have have oversight to make sure they're following your directives. i'm not sure that's going happen. but i can tell you that if it doesn't happen, these kind of sessions are not going to stop. they're going to continue. these committee hearings and asking folks to be accountable for what's going on are going to continue. i would just say that if there are ideas, either from the private sector, nonprofit sector, from the union groups, from the agencies, that we can help you with, to be able to help you do your job, to make sure that we're able to achieve what we're trying to get here with truly having positions

that are designated sensitive that need to be designated sensitive, and not because it's convenient to designate as sensitive for some other reason, or the same thing with security clearances, making sure that the folks who have them need them and they're just handed out like candy at halloween, i think it's really going to be important. he will offer the chairman of this committee, and i know the senator will do his level best too to make sure that we fix what i think is a very serious problem that i talked about in my opening remarks. i would just say that this will only get fixed if you always hear this in the legislative branch if we work together, and i mean between branches on this and with the private sector. so i just want to thank you all for being here. this afternoon i'm going to be introducing legislation, along

th ranking member portman, mccaskill, johnson and others to bring more accountability to the process. hopefully that will help you do your job. it's a key part of this you'll require periodic reviews to ensure regular updated to reflect the current requirements. i would say that -- i would argue, in fact, there's a lack of clear guidance that's led us down a path where we now have five million folks with security clearances and access to our nation's most sensitive information and facilities. would you like to speak about that, brian? go ahead. >> sir, if i may, i did not mean to interrupt, i just wanted to clarify, we're very sensitive to what you say about that number. the five million number that you're referring to covers both people with security clearance, as well as people eligible for access.

and being sensitive to that number, as you mentioned, five million of anything is a lot. >> it is. >> and because of that, recently, speak of the devil, as you mentioned, on halloween, the d.n.i. designed an executive correspondence going out to all the government agencies stating that they need to -- they're required to go through their clearance list to validate the numbers, come back to the people who are being debrief from the their clearances and get back with us with that information. >> when will they get back to you with that information? >> they were given 90 days, sir. >> did it on halloween, ok. my next question would be, if there's five million that either have clearances or are eligible, how many have clearances, and you'll have that in about, what, 75 days or so? ok. that's good. >> yes, sir. >> we'd love to have that as soon as you get it. anyway, i look forward to working with the folks that are

on this panel today, and i want to express my appreciation for you being here. i think it was a worthwhile discussion about where we are and potentially where we're going. i look forward to working with my colleagues on this subcommittee and throughout the senate to get legislation on this done. i am confident that we can act responsibly and put the partisanship aside and build upon t act and take further steps to improve the clearance process for the security of this country. and so with that, i will say this record will remain open for 15 days for any additional comments or questions that might want to be submitted. once again, thanks to the panel for being here. this committee meeting is adjourned. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013]

>> a couple of live teevepbts tell about you today on c-span3. the senate judiciary committee looks into government surveillance programs at 10:00 a.m. eastern. witnesses include deputy attorney general james cole. at 2:15 p.m. eastern, a senate foreign relations subcommittee will focus on the political situation in north africa. hearing from representatives of the pentagon and state department. >> in a few moments, a look at today's headlines, plus your calls, live on "washington journal." and the house is in session at 9:00 eastern to work on a bill regarding the permit process for natural gas pipelines. and in about 45 minutes, we'll focus on implementing the healthcare law and the status of the healthcare.gov web sivement our guest is mike doyle of pennsylvania, a member of the energy and commerce committee. and at 8:20 eastern, we'll be joined by representative trey

gowdy, a south carolina republican, chairman of the judiciary subcommittee on immigration and border security. lex breaking overnight, afghanistan president says he supports an emerging deal that could keep u.s. troops in the country until 2024. welcome to the washington journal on this thursday, november 21. beginning with the news out of the senate. harry reid reportedly moving closer to the nuclear option that would save --